Dragan Mikic v NT Mining Operations Pty Ltd
[2017] FWC 5220
•12 OCTOBER 2017
| [2017] FWC 5220 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dragan Mikic
v
NT Mining Operations Pty Ltd
(U2017/6860)
COMMISSIONER BISSETT | MELBOURNE, 12 OCTOBER 2017 |
Application for an unfair dismissal remedy – jurisdictional objection – whether the person was covered by an award and/or was protected from unfair dismissal – jurisdictional objection dismissed – application referred for hearing.
[1] Mr Dragan (Danny) Mikic has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Mikic was employed by NT Mining Operations Pty Ltd (NT Mining Operations). His employment was terminated on 8 June 2017.
[2] NT Mining Operations objects to the application on the grounds that it says Mr Mikic is not protected from unfair dismissal. In particular it says:
(i) Mr Mikic earned more than the high income threshold and/or
(ii) Mr Mikic’s employment was not covered by a modern award and/or
(iii) Even if Mr Mikic is covered by a modern award he had a guarantee of annual earnings reflected in his contract of employment such that the modern award does not apply.
[3] Section 382 of the FW Act states:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[4] There is no dispute that Mr Mikic has served the minimum employment period.
[5] There is no enterprise agreement that applies to Mr Mikic’s employment.
[6] Unless Mr Mikic is covered by a modern award or his annual rate of earnings is less than the high income threshold he is not protected from unfair dismissal. In such circumstances Mr Mikic would not be eligible to make an application for unfair dismissal.
The Mining Industry Award
[7] It is agreed and I am satisfied that the relevant award is the Mining Industry Award 2010 1(MI Award). The question is if Mr Mikic is engaged in a classification listed in the MI Award.
[8] The MI Award states, at clause 4:
4. Coverage
4.1 This industry award covers employers throughout Australia who are engaged in the mining industry in respect of work by their employees in a classification in this award and their employees engaged in the classifications listed in clause 13—Classifications and minimum wage rates, of this award, to the exclusion of any other modern award.
[9] The mining industry is defined at clause 4.2. Mr Mikic is not affected by any of the exclusions from the industry at clause 4.3.
[10] The MI Award contains details of the classifications covered by it at Schedule B.
[11] Clause B.2 of Schedule B of the MI Award sets out the classification groups. This includes:
B.2.5 Mining Industry Maintenance Trades Employees
A Mining Industry Maintenance Trades Employee is designated as such by their employer, performs all tasks on the surface or underground as directed by their employer and is trade qualified.
[12] The classification structure covered by the MI Award is detailed at clause B.3 of Schedule B. That structure (excluding the detail) is as follows:
B.3.1 Entry Level–Introductory…
B.3.2 Level 1–Basic…
B.3.3 Level 2–Intermediate…
B.3.4 Level 3–Competent
An employee at this level will have been assessed as being competent to apply skills and knowledge in complex but routine situations where discretion and judgment are involved. The skills and knowledge are acquired through the completion of a trade certificate, or through practical experience, which has equipped the employee with an equivalent level of skills and knowledge….
B.3.5 Level 4–Advanced…
B.3.6 Level 5–Advanced Specialist…
B.3.7 Level 6–Dual Trade…
B.3.8 Level 7–Dual Trade Instrument Technician…
[13] Clause B.1.2 of Schedule B provides that advancement through the classification structure from Level 1 to 4 is based on possession of the necessary skills and being required by the employer to perform work at that level. Progression beyond Level 4 is subject to an employee being appointed by the employer to that level.
Is Mr Mikic covered by the Mining Industry Award?
[14] Mr Mikic gave evidence as to the roles he has performed with NT Mining Operations. He says that he commenced employment with NT Mining Operations as a Maintenance Fitter. As a Maintenance Fitter he was required to hold a current trade qualification as a Maintenance Fitter.
[15] On 21 May 2014 Mr Mikic was “promoted” to a Mechanical Leading Hand. Mr Mikic provided a copy of his position description for that role which required that, in addition to what I understand to be standard roles for a Maintenance Fitter (e.g. welding, fabrication etc) he was responsible for trades and mechanical personnel and for relevant apprentices. He reported to the Maintenance Superintendent and filled in this role when the occupant was absent.
[16] The “role summary” for the “Mechanical Leading Hand” position states:
This is a maintenance position that requires work to be completed as part of the Processing Team(s) requiring the incumbent to undertake maintenance fabrication repairs and installation work within Crocodile Gold Corporation’s NT Operations project infrastructure.
[17] To this extent the position would appear to come under the classification group of “Maintenance Trades Employee” in the MI Award.
[18] Mr Mikic says that on 1 April 2016 he received notification of a “change to terms and conditions” in a letter from Karen Brown, Human Resources Manager – NT Mining Operation. Mr Mikic says that the change was to the title of his position only and not to his duties. His job title became “Maintenance Supervisor”. He says that, with the letter he received a position description for “Maintenance Supervisor” and this was identical to the position description for the “Leading Hand” position.
[19] A copy of the position description for “Maintenance Supervisor” was provided by Mr Mikic. Apart from some minor changes to the job description it is, in all relevant respects, the same as that of the “Maintenance Leading Hand” position description.
[20] On receipt of the amended contract as part of the title change Mr Mikic said he queried an alteration to his annual leave entitlement. He received an email from Ms Brown in which she said:
In regards to your Annual Leave. This has not changed. None of your terms and conditions have changed. Only your title.” [sic]
[21] Mr Mikic says that, apart from the change in title, his terms and conditions of employment and rate of pay did not change.
[22] Mr Mikic said that he sought the change in title as he thought it would look better on his resume.
[23] I am satisfied that Mr Mikic’s position description did not change (such that it would affect award coverage) when his position title changed from “Leading Hand” to “Maintenance Supervisor”.
[24] Mr Colin Kitching works in the Human Resources area of NT Mining Operations. He made a statement in the proceedings and, in that statement, said:
A change to Mr Mikic’s title was formally proposed on 18th March 2016 by Mill Manager, Chris Buda. This change was approved by the General Manager on 21st March 2016.
On 1st April 2016 I sent the attached email to Mr Mikic for the purposes of him having a role title change with the company he was employed under...
In his role as Maintenance Supervisor Mr Mikic was responsible for supervising between 4 and 8 personnel on a regular basis, being Maintenance Fitters and Boilermakers. Approximately 60% of his time was spent “on the tools” and 40% office-based. 2
Consideration
[25] On the basis of the evidence of Mr Mikic and Mr Kitching I am satisfied that the 2016 changes to Mr Mikic’s employment were no more than a change in job title. To the extent that Mr Mikic was covered by the MI Award as a “Maintenance Lading Hand” then Mr Mikic was covered by the MI Award when he held the position of “Maintenance Supervisor”.
[26] I am satisfied that, whilst employed as a “Maintenance Fitter” Mr Mikic was covered by the MI Award. His work clearly fell within at least the Level 3 – Competent classification of clause B.3.4 of Schedule B and he was within the designation classification group specified in the MI Award. He was required in his role as Maintenance Fitter to hold a trade certificate and undertook “fitter” tasks.
[27] A “Leading Hand” is not a classification under the MI Award. Clearly, however, the MI Award contemplates a person taking on the role of leading hand and provides an allowance for that purpose. It is not a separate classification to any other in the MI Award but rather is an allowance payable when a person is in charge of 3 or more employees. 3 To this extent the allowance applies in addition to the rate of the pay for the classification of the employee.
[28] There was no indication in the letter of offer to Mr Mikic on 15 May 2014 that, in becoming a leading hand, his classification changed in any way. The position description for the role of “Mechanical Leading Hand” set out at [16] above, made it clear the position was a maintenance role.
[29] There is nothing otherwise in the position description that suggests the role was not one of a fitter but with leading hand responsibilities.
[30] I am therefore satisfied that, as leading hand, Mr Mikic continued to be covered by the MI Award at Level 3 – Competent.
[31] Whilst I accept that Mr Mikic’s evidence is that he was “promoted” to the position of “Mechanical Leading Hand” this does not affect the fundamental analysis set out above.
[32] As a Mechanical Leading Hand Mr Mikic was therefore covered by the MI Award. Given his position description did not change in any material respect when he became a Maintenance Supervisor and, given the advice to him that none of his terms and conditions had changed, only his title, I am satisfied that he continued to be covered by the MI Award whilst occupying the position of Maintenance Supervisor.
[33] A mere change in the title of a position cannot change the fundamental characteristics of the position occupied or work performed. Both Ms Brown and Mr Kitching expressly stated that the only thing that changed for Mr Mikic in May 2016 was a change in his position title.
[34] My conclusion is not altered in the knowledge that Mr Mikic spent 60% of his time “on the tools” and 40% on “office-based” activities. 4 Firstly, I do not know if this varies from his role as a Mechanical Leading Hand or how this compares to fitters more broadly. Second, as Mr Kitching observed “existing employees…are required to access and use emails on a daily basis”5 which suggests that there even those who are considered to be “on the tools” on a full time basis are required to do some office-based work.
[35] For these reasons I am satisfied that Mr Mikic was covered by the MI Award at the time his employment was terminated.
Conclusion
[36] Having found that Mr Mikic’s employment was covered by a modern award I do not need to determine, for the purposes of s.382 of the FW Act, if he earned more than the high income threshold. Nor do I need to determine if the relevant modern award applied to Mr Mikic.
[37] The FW Act distinguishes between when a modern award covers an employee and when a modern award applies to that employee.
[38] Section 48 of the FW Act states:
48 When a modern award covers an employer, employee, organisation or outworker entity
When a modern award covers an employee, employer, organisation or outworker entity
(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to coverthe employee, employer, organisation or outworker entity...
[39] I have found above that the MI Award covers NT Mining Operations. I have also found that Mr Mikic’s classification comes within the classifications in the MI Award. To this extent the MI Award covers Mr Mikic.
[40] Whether the MI Award applies to Mr Mikic is not relevant to determine if he is protected from unfair dismissal. The only requirement of s.382(b) of the FW Act is that one of the circumstances apply. Those circumstances do not include whether a modern award applies.
[41] The MI Award may not apply to Mr Mikic for a range of reasons – an enterprise agreement may apply or he may have a guarantee of annual earnings or some order of the Commission may have some effect but, as I have observed, the test in relation to protection from unfair dismissal is not whether the MI Award applies but rather if it covers Mr Mikic.
[42] NT Mining Operations’ grounds for objection misunderstands the provisions of the FW Act. This is evidenced in its written submissions where, in discussing whether the MI Award “covers” Mr Mikic it quotes s.47(2) of the FW Act which deals with when a modern award “applies”. These are distinct concepts and not to be confused.
[43] For the reasons given above, I am satisfied that Mr Mikic is covered by a modern award.
[44] Having satisfied the minimum employment period requirement Mr Mikic is therefore protected from unfair dismissal.
[45] The jurisdictional objection to Mr Mikic’s application is therefore dismissed. Mr Mikic’s application for unfair dismissal can be heard. Directions will be issued in respect of the merits of the matter accordingly.
COMMISSIONER
Appearances:
S. Hatton for the applicant.
P. Cozens for the respondent.
Hearing details:
2017.
Melbourne:
September 21.
1 MA000011.
2 Exhibit R1, attachment 15.
3 MA000011, clause 14.2(a).
4 Exhibit R1, attachment 15.
5 Ibid.
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